PREMARITAL AGREEMENTS IN CALIFORNIA

If you live in California and you’re thinking of getting married and having your new spouse sign a pre marital agreement, you’re going to want to know about Family Code § 1615. For instance, when it comes to voluntary execution, Family Code §1615(c)(2) states that:

(c) [I]t shall be deemed that a premarital agreement was not executed voluntarily

unless….

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent counsel and the time the agreement was signed.

One of the leading California cases dealing with premarital agreements is a 2011 case, entitled Marriage of Cadwell-Faso v. Faso 191 Cal.App.4th945(2011). Cadwell involved two parties to be wed who wanted a premarital agreement. In December 2005, Husband’s attorney prepared a draft of a PMA, sent it to Wife, and suggested that she hire an attorney.

Wife subsequently hired an attorney, and she instructed her attorney to draft an addendum to the PMA. Upon reviewing it, Husband refused the addendum as well as the next three drafts Wife’s attorney sent to him. On May 17, 2006, Wife called off the wedding. Husband then agreed to the addendum.

Wife’s attorney then drafted a 5th addendum, which was faxed to Husband on May 19th, 2006. On May 25th, 2006, the parties met in Husband’s attorney’s office and signed the agreement. The parties then married on May 27th, 2006. Eighteen months later the parties filed for dissolution. During the proceedings, Husband took the position that, under Family Code § 1615(c)(2), the addendum was unenforceable.

The trial court agreed with Husband and found that the seven (7) day rule meant what it said. (In this case, there were only six (6) days between the presentation of the 5th addendum and the signing thereof). Both parties had been represented by counsel throughout the entire six months of negotiations.

The Court of Appeal reversed. Although it acknowledged that Family Code § 1615(c)(2) suggested that the seven (7) day waiting period was for the benefit of an unrepresented party, the Court of Appeal held that Family Code §1615(c)(2) does not pertain to a party who was represented in the transaction from the outset.